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Nerdy Legal Issues in the NewsSat, 31 Jan 2015 22:36:19 +0000enhourly1http://wordpress.com/https://secure.gravatar.com/blavatar/078ae0b1f2189de5065f018fec0fc7a9?s=96&d=https%3A%2F%2Fs2.wp.com%2Fi%2Fbuttonw-com.pngNerds in Courthttps://nerdsincourt.wordpress.com
WHY IT IS ILLEGAL TO RIDE A ZEBRA IN THE PARK ON THURSDAY IN SOME CITIES AND OTHER WHACKY LAWShttps://nerdsincourt.wordpress.com/2013/11/12/why-it-is-illegal-to-ride-a-zebra-in-the-park-on-thursday-in-some-cities-and-other-whacky-laws/
https://nerdsincourt.wordpress.com/2013/11/12/why-it-is-illegal-to-ride-a-zebra-in-the-park-on-thursday-in-some-cities-and-other-whacky-laws/#commentsWed, 13 Nov 2013 04:44:12 +0000http://nerdsincourt.wordpress.com/?p=459Continue reading →]]>

Photo by Tambako The Jaguar

If you are reading this, then you are on the Internet. If you are on the Internet, then it is inevitable at some point you came across a list of “dumb laws” or “whacky laws.” It has probably even happened more than once. Maybe a friend forwarded it to you, maybe you came across it on a website. Either way, you have certainly seen somewhere a list that includes laws like: “It is illegal to ride a zebra in the park on Thursday in the town of Somewhere, Somestate.” Today, a major news website has just put a story related to “whacky laws” on its front page, prompting this article.

Now, surely there are some dumb and whacky laws out there. There are also some archaic laws that might have been put on the books back in the 1800s, are now unenforced, and nobody bothered repealing them. Laws against spitting on the sidewalk were often drafted when loads of people in America used to chew tobacco. Tons of people regularly spitting tobacco on the sidewalks really made them disgusting, so the law made sense when chewing tobacco was in vogue. Nowadays, a cop probably has a little more to worry about than if Tommy hawked a loogie on Main Street on his way to Little League practice, but no one bothered actually repealing the law.

Yet, how can one explain a law against riding a zebra in the park on Thursday? It seems ridiculous. It is so specific. Why would a town in the United States have gone through all the trouble of outlawing the riding of zebras in parks, particularly on a Thursday? What about every other day of the week? Is it fine to ride a zebra in the park on Sunday, when it is likely there would be even more people in the park? Was there an outbreak of zebra-riding in this particular locale, necessitating the implementation of such a law?

The secret is that these lists rely on a trick called over-specification. For example, let’s say that a town passes an ordinance that no one may bring a wild animal to the park. It would probably be drafted in droll legalese, something like: “No owner or keeper of a wild animal or any member or species of the animal kingdom not indigenous to this State may bring such animal to a public park. Violation of this statute is a misdemeanor.” Well, that seems reasonable. It makes perfect sense for a town to ban folks from bringing wild animals to public parks. All you need to ruin a good picnic is some jerk’s syphilitic monkey causing havoc in the park because they wanted a pet that was ‘different.’

Ah, but an ordinance placing a general ban on exotic, wild animals in the park isn’t too funny. That’s not dumb or whacky. Banning wild animals from public parks doesn’t evoke a chuckle. So, the people who do these lists make it extremely specific. They say it is illegal to ride a zebra in the park on Thursday. Well, sure, technically it is. Technically the law does prohibit zebras from the park on Thursdays. It also prohibits zebras on every other day of the week. It prohibits zebras, cheetahs, lions, tigers, and bears, and every other dangerous pet someone might want to set loose on a public park. You don’t even have to be riding one of them.

So, the humor doesn’t come from the general law; it makes perfect sense. The trick relies on taking a general law and making it highly specific. The “funny” part is imagining some town council somewhere going through the trouble of specifically banning zebras, the riding of zebras, and particularly on Thursdays. Thus, the first thing to do when you encounter a “whacky law” is to ask whether there is a sensible, more generalized statute of which the “whacky law” is merely a specific example.

It is really easy to generate these “whacky laws” once you get the hang of it. Let’s try an example. It is a pretty safe bet that it is illegal to steal the property of another in Memphis, Tennessee. It is generally illegal to steal the property of another in any city. Let’s make that over-specific: did you know in Memphis it is illegal to steal someone’s Elvis memorabilia? There’s even an air of plausibility since Tennessee is where Graceland is. What a minute. Memphis is a big city. That might raise an eyebrow. Notice how these lists tend to use small towns? It must make the “whacky law” seem more believable. How about Atoka, Tennessee? Hardly anyone lives there, it has a funny name…. Did you know in Atoka, Tennessee it is illegal to steal someone else’s Elvis memorabilia? That’s better. Hahaha, those whacky Atokans!

Photo by Pop Culture Geek

Let’s try another. How about Ogunquit, Maine? Another small town, Stephen King is from Maine, in fact he used Ogunquit in The Stand, so it is automatically has an air of weird. Did you know in Ogunquit, Maine, it is illegal to intentionally destroy another’s model or replica of the Starship Enterprise? Wow, that sounds whacky! What about a replica of the Serenity, Millennium Falcon, or Battlestar Galactica? Well, it sounds funny until you consider that it is generally illegal to destroy someone else’s property anywhere in the United States or any other civilized country. It is sort of like saying in a given city it is illegal to murder someone whose middle name is Frederick. It probably is illegal to murder someone whose middle name is Frederick. Also, it is probably illegal to murder someone whose middle name is Andrea, Brian, Carl, Dorothy, and so on. That might be a little obvious, but it serves to show how these work: take a general, sensible law and over-specify what it prohibits.

Did you know it is illegal in California to shave a wombat with a butter knife? Well, most places have laws against animal cruelty. Shaving an animal with a butter knife sounds pretty cruel. The folks who make these up really like ones involving animals. Animals as a topic lets you pick whacky animals like wombats, zebras, and blobfish. Take a generalized statute like a prohibition on cruelty to animals, then pick a whacky animal like a wombat or giraffe and some goofy, but cruel act and viola: instant whacky law.

Did you know in Sturgis, South Dakota it is illegal to kill a whooping crane with a left-handed crossbow? It’s true. That’s largely because a whooping crane is an endangered species, so killing one with a crossbow, shotgun, phased plasma rifle in the 40-watt range, or any weapon is against the law. In fact, since the Endangered Species Act is federal law, it is illegal everywhere in the United States to kill a whooping crane by any means, even Fujian White Crane kung fu.

The “dumb law” of Canton, Ohio, is supposed to be that, “If one loses their pet tiger, they must notify the authorities within one hour.” Yet, if you scroll down a bit you see the text of the actual law which is just that the owner of any dangerous animal that escapes their custody must report it to the authorities within an hour. “If one’s dangerous animal escapes custody, they must notify the authorities within in an hour.” That makes perfect sense, so it isn’t funny. Using the over-specification trick though and making it a “tiger” as opposed to any “dangerous animal” is what elicits the chuckle. Again, it generates the mental image of a city council that is irrationally afraid of tigers. Ha, is there really a ton of people with tigers in Canton, OH, hehehe? Actually, the statute mandating reporting of dangerous animal escapes is an Ohio statute, not specific to Canton.

So, in closing, there are certainly plenty of dumb laws out there. No one can deny that. Results of bad social policy, special interest group lobbying, even just plain dumb or even archaic laws still on the books. There was the classic example of the city council of Aliso Viejo, California, which in 2004 had placed on their agenda a ban on dihydrogen monoxide (DHMO) due to the large number of human deaths and billions in property damage the chemical is proven to cause each year. The ban was pulled before voting when someone realized that DHMO was actually water. Now that’s hilarious. Yet, that was a dumb almost-law. Just remember, when you see a list of “whacky laws,” keep your eye out for that over-specification technique and you won’t be fooled.

]]>https://nerdsincourt.wordpress.com/2013/11/12/why-it-is-illegal-to-ride-a-zebra-in-the-park-on-thursday-in-some-cities-and-other-whacky-laws/feed/0cevolaPhoto by Tambako The Jaguar Photo by Pop Culture GeekPhoto by Tambako the JaguarTIME TO KICK THAT NASTY HOBBIT [REPRISED]: NINTH CIRCUIT AFFIRMS INJUNCTION RESTRAINING ‘AGE OF HOBBITS’ MOCKBUSTERhttps://nerdsincourt.wordpress.com/2013/11/06/time-to-kick-that-nasty-hobbit-reprised-ninth-circuit-affirms-injunction-restraining-age-of-hobbits-mockbuster/
https://nerdsincourt.wordpress.com/2013/11/06/time-to-kick-that-nasty-hobbit-reprised-ninth-circuit-affirms-injunction-restraining-age-of-hobbits-mockbuster/#commentsThu, 07 Nov 2013 04:29:48 +0000http://nerdsincourt.wordpress.com/?p=445Continue reading →]]>Last year, the Global Asylum, Inc . (Asylum) announced plans to release Age of the Hobbits just a few days before New Line’s The Hobbit: An Unexpected Journey was set to hit theatres. Age of Hobbits deals with a species discovered by archaeologists in 2003. Scientists initially considered naming the new species “homo hobbitus”,” but settled on “homo floresiensis.” In Age of Hobbits, the homo floresiensis face off against komodo dragon worshipping cannibals.

Nerds in Court reported the issuance of a temporary restraining order against Asylum last December, and a preliminary injunction was later ordered January 29, 2013. Asylum appealed this ruling, but on October 30th, the Ninth Circuit Court of appeals affirmed the District Court’s injunction restraining the mockbuster from being named “Age of the Hobbits.”

On appeal, Asylum argued that the Plaintiffs Warner Brothers Entertainment Inc., New Line Productions Inc., Metro-Goldwyn-Mayer Studios, Inc., Saul Zentz Company, and New Line Cinema, LLC’s (the Studios) were unlikely to succeed on their trademark infringement claim regarding the term “Hobbit.” Asylum claimed that it was entitled to nominative fair use to the term because scientists nicknamed members of the species homo floresciensis “Hobbits.”

In support of its argument, Asylum tried to invoke an exception to the nominative use factors set forth in New Kids on the Block v. News Am. Pub., Inc., 971 F.2d 302, 308 (9th Cir. 1992). Once upon a time, the New Kids on the Block sued The Star for offering fans a paid poll to vote which New Kid was “the sexiest.” The New Kids’ suit failed because The Star did not name the group to imply endorsement or false advertisement. For the nominative fair use defense to apply (1) the Defendant’s product or service must be “readily identifiable” without use of the mark; (2) defendant used more of the mark than necessary; or (3) defendant falsely suggested he sponsorship or endorsement by the trademark holder.

Later courts held that a district court may order Defendants to modify their use of a trademark to satisfy the New Kids requirements for nominative fair use rather than joining nominative uses altogether. Toyata Motor Sales, USA, Inc. V. Tabari, 610 F.3d 1171, 1176 (9th Cir. Cal. 2010).

In refusing to modify the injunction to allow nominative use of the “Hobbit” trademark, the appellate Court noted that Asylum did not offer any specific language regarding “how the injunction should be modified to allow nominative uses of the protective trademarks while prohibiting Asylum’s infringing uses.” The Ninth Circuit held that since no suggestion was offered by Asylum, there was no “abuse of discretion” by the District Court issuing the injunction.

]]>https://nerdsincourt.wordpress.com/2013/11/06/time-to-kick-that-nasty-hobbit-reprised-ninth-circuit-affirms-injunction-restraining-age-of-hobbits-mockbuster/feed/0cevolajudge_ageofhobbits_posterCOSPLAY, COPYRIGHT, AND CARPEThttps://nerdsincourt.wordpress.com/2013/09/24/cosplay-copyright-and-carpet-analysis/
https://nerdsincourt.wordpress.com/2013/09/24/cosplay-copyright-and-carpet-analysis/#commentsTue, 24 Sep 2013 15:00:59 +0000http://nerdsincourt.wordpress.com/?p=388Continue reading →]]>Throughout the world, fans assemble at conventions and gatherings adorned in intricate costumes, gravity-defying hairstyles, and elaborate make-up modeled after their favorite characters from popular culture. The trend is called “cosplaying” and those who engage in it are called “cosplayers.” As anyone who has attended or seen pictures from a recent convention knows, cosplaying in recent years has gone far beyond a lone Trekkie wearing a Federation redshirt. Cosplayers have recreated entire casts of characters, including the most obscure. Indeed, an emerging trend in cosplay has been to seek novelty, as a cosplayer wants to strike out into new territory rather than being the 10,000th person to don a Darth Vader costume. Many serious cosplayers have ramped up their skills at finding unique and complex subjects to show off their art.

Thus Volpin Props, renowned and superbly talented designer of videogame, fantasy, and real-world prop replicas, recreated the design of the carpet at the Marriott Marquis Atlanta hotel. Yes, a hotel carpet. This particular Marriott is a host hotel for Dragon*Con, one of America’s largest conventions, and would be a familiar sight to Dragon*Con attendees. Volpin not only recreated the design of the carpet, but also created costumes to be worn at Dragon*Con which incorporated the design of the carpet. In a virtuosic display of optical illusion and creativity, the costumes were designed so that those wearing the costumes would blend into the carpet if they laid themselves down in the proper position. The result was the stunning photo above.

The costumes were such a hit that Volpin made the fabric available for purchase on Spoonflower–a website which enables the user to create and sell custom fabric prints. Last week, Volpin Props announced on its Facebook page that the carpet designer requested the design be pulled:

Of all the things to get a Cease and Desist over, of ALL the replicas I’ve made over the years, I’ve received one from Courtisan Inc, designers if (sic) the Marriott Marquis Atlanta hotel carpet. Spoonflower has pulled the design, as is their right, so sorry everyone who wanted some fabric of their own!

The absurdity is palpable.

-Volpin

The announcement has since spread like wildfire throughout the online cosplay community. Upon reading the comments on Volpin’s page and articles on other blogs, it seems that some have blurred the distinction between (1) the online sale of the fabric design through Spoonflower, and (2) a cosplayer wearing the carpet costume, taking pictures, and posting them on social media pages. Here is a breakdown of some relevant law on the subject:

Fabric designs enjoy more protection under copyright law than costumes themselves. Some costumes are not even copyrightable at all. Garments are generally considered “useful articles” which are incapable of copyright protection, unless the garment “incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” 17 U.S.C. § 101. This separability must at least be physical or conceptual in nature to be entitled to protection under copyright law. United States Copyright Office Policy Decision: Registrability of Costume Designs, 56 Fed. Reg. 56,530, 56,532 (1991). For example, fanciful renditions of a “Tigress” and “Magic Dragon” costume with unique color combinations, arbitrary placement of physical features, and sculptured headpieces were held to be copyrightable because the artistic components were conceptually separable. National Theme Productions, Inc. v. Beck, 696 F. Supp. 1348 (S.D. Cal. 1988).

Fabric designs, in contrast to costumes, are easier to copyright. InL.A. Printex Industries, Inc., v. Aeropostale, Inc., the court held that while the mere idea of a particular floral configuration was not protected under copyright law, the original selection, coordination, and arrangement of the bouquets and branches in the fabric was protectable. 676 F.3d 841, 849 (9th Cir. Cal. 2012).

Though the artistic merit of the bizarre carpet itself has been questioned, the gold, blue, and red segmented circles are arranged and coordinated into an original configuration, and the 2nd Circuit would consider the design a “writing.” The carpet design would likely be afforded copyright protection based upon Courtisan Inc.’s unique pattern. Unfortunately that means that creating and selling a replication of this carpet through an online fabric store is probably copyright infringement.

Interestingly, the cosplay of the carpet itself—as distinguished from the sale of the fabric itself–would most likely satisfy fair use requirements and be classified as a parody. The cosplayers are clearly imitating the carpet for comic effect. For legal purposes, a “parody” is “a literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule.” Campbell v. Acuff Rose Music, Inc., 10 U.S. 569, 578 (1994). Fair use is one of copyright law’s “built-in First Amendment accommodations” allowing the public to, “use not only facts and ideas contained in a copyrighted work, but also expression itself for limited purposes.” Eldred v. Ashcroft, 537 U.S. 186, 190 (2003). This “First Amendment accommodation” provides the public “considerable latitude” for commentary and parodies. Id. In this case, the cosplayers themselves, camouflaged against the carpet, bring a comic element that would be absent in the fabric by itself. As such, if the cosplayers were sent a cease and desist notice merely for posting pictures of themselves in the carpet costumes on their social media accounts, they would have a strong defense. This, however, is not what happened in this case.

If this area of law seems tricky and involved that is because it is. Assuming that a particular costume design has artistic elements capable of being protected, a cosplay which does not critique or comment on a copyrighted work for comic purposes would have to satisfy the traditional fair use requirements. Readers curious about whether a particular cosplayer who dresses as a character other than for “comic effect or ridicule” are encouraged to read Nerds in Court co-founder Christina Evola’s ASCAP award winning article “The Next Generation of Costumes and Conventions: Is Cosplay Copyright Infringement? (click here to download for free). There, after discussing the historical background of cosplay, she illustrates the likelihood of whether a fictional Princess Leia cosplayer would be held liable for copyright infringement. She first provides a copyright infringement analysis, followed by a fair use assessment.

]]>https://nerdsincourt.wordpress.com/2013/09/24/cosplay-copyright-and-carpet-analysis/feed/0cevolaGHOST RIDER LAWSUIT BROUGHT BACK FROM THE DEADhttps://nerdsincourt.wordpress.com/2013/06/12/ghost-rider-lawsuit-brought-back-from-the-dead/
https://nerdsincourt.wordpress.com/2013/06/12/ghost-rider-lawsuit-brought-back-from-the-dead/#commentsThu, 13 Jun 2013 02:59:27 +0000http://nerdsincourt.wordpress.com/?p=377Continue reading →]]> In December 2011, NiC covered the case of Gary Friedrich, the comic book writer who claims credit for inventing the flaming-skulled, motorcycle-riding hero of Marvel Comics. Friedrich’s case had been moved to New York federal court in 2008. Friedrich essentially claimed that his contract with Marvel gave them the rights to Ghost Rider in comic-book form only, but that he was entitled to compensation from the Ghost Rider movies starring Nicholas Cage. Back in December 2011, things went bad for Friedrich when federal judge Kathleen Forrest found that Friedrich had relinquished all of his rights to Marvel.

This kind of case is not entirely unique. When a writer or artist goes to work for a comic book company, the disposition of rights to characters created by that individual are generally going to be covered by their contract. One would expect, and it is likely the case today, that a comic company such as Marvel would claim the rights to use any characters created in their contract with the individual in any medium. Often employment contracts will require that any characters created by the employee while they are on salary are the property of the company. Of course, there are also “work for hire” contracts and other contracts which are more on a per-case basis, like an independent contractor. There was a famous case where Neil Gaiman claimed joint ownership of some characters he created for Todd McFarlane’s “Spawn” comic book. It is a well-written opinion very worth reading for those interested in copyrights of characters.

Regardless though, when Ghost Rider first appeared as Johnny Blaze with the flaming skull in 1972, perhaps comic companies were not as concerned with movie rights, since there weren’t a lot of comic book movies in those days. At issue in Friedrich’s case was a 1978 agreement he signed with Marvel. Earlier this week a unanimous three judge panel on the federal Court of Appeals found that Friedrich’s case should not have been dismissed. The time frame of finally having an appeal on a 2011 ruling heard in mid-2013 is fairly typical, demonstrating that justice is often slow in the underfunded court system. The Court found that the 1978 agreement’s definition of “Work” was “ungrammatical and awkwardly phrased.” Furthermore, the Court also found that the 1978 agreement was not clear on how it pertained to work done 6 years earlier, since Johnny Blaze first appeared in 1972. Thus, the Court found that ownership of Ghost Rider in movie form is genuinely in dispute and the case will continue at the trial level. That is important to note: just because Friedrich won the appeal does not mean that he won the case, it just means that his case is allowed to continue. Friedrich’s lawyer, Charles Kramer, stated that Friedrich will continue to pursue the case “aggressively and vigorously” following the Appellate Court’s 48 page ruling.

]]>https://nerdsincourt.wordpress.com/2013/06/12/ghost-rider-lawsuit-brought-back-from-the-dead/feed/0cevolaghost_riderghostriderniccageON PRISM, SMITH, AND PEN REGISTERShttps://nerdsincourt.wordpress.com/2013/06/11/on-prism-smith-and-pen-registers/
https://nerdsincourt.wordpress.com/2013/06/11/on-prism-smith-and-pen-registers/#commentsWed, 12 Jun 2013 04:16:57 +0000http://nerdsincourt.wordpress.com/?p=351Continue reading →]]>Edward Snowden is a computer nerd that could be finding his way to court sometime in the future. The big news of the week is Snowden’s leak that the CIA and other intelligence agencies, have been mining “metadata” of the American public. Essentially, intelligence agencies have been gathering and analyzing data on which websites you visit, how often, and so on. In reality though, and what most coverage on this issue seems to omit, is that a lot of this goes back to a 1970s Supreme Court case titled Smith v. Marylandand a 19th century device called a “pen register” that was used on telegraphs.

A pen register is essentially a pen attached to an armature and electromagnet, so that the pen marks on a strip of paper information from electromagnetic pulses. Thus, the “pen” part of “pen register” was a fountain pen. Pen registers were important to telegraphs in reading the pulses as information and writing it down for people to read. Later, as telephones came about, a pen register could still record information from the electromagnetic pulses used in dialing a telephone number. Therefore, a pen register could record which phone numbers were dialed by a particular phone, although it couldn’t say anything about the contents of the conversation. Dialing a number sends out electromagnetic pulses, the pen register writes them down, end of story. Of course, as technology developed, pen registers became more sophisticated, and not just by using a ballpoint instead of a fountain pen. They eventually got rid of pens for a printing device, and later still became electronic. Yet we still call them “pen registers” the same way we still call movie previews “trailers” even though it has been decades since we started showing them before a movie instead of afterwards. Names can stick.

Anyways, law enforcement saw the obvious benefit of pen registers for surveillance. If you suspect someone is calling the local cocaine dealer, just attach a pen register to his or her phone line and you can find out. Put one on the dealer’s line too, no need to ask a judge. Yes, police were so fond of pen registers that they began attaching them without a warrant. A cop with a hunch that someone was a criminal could just go ahead and attach a pen register to check their phone calls without having to go to a judge first to show probably cause. If a warrant was required, they’d have to go to a judge first to get permission to attach a pen register to your phone, but police were doing it without warrants. Again, the pen register only recorded the numbers dialed, not the contents of the conversation.

Still, people were upset about this practice when it came to light in the 1970s. In view of the Fourth Amendment protection against warrantless searches, this practice was challenged in the case of Smith v. Maryland that went up to the Supreme Court in 1979. In Smith, the Court found that a pen register did NOT violate the Fourth Amendment protections. In other words, in 1979 the Supreme Court gave it’s blessing for law enforcement to proceed with using pen registers without needing to get a warrant first. They were impressed by the fact that only the phone numbers were recorded, not the contents of the conversation. Furthermore, the Court reasoned that since someone conveys to the phone company what number they want to dial, there could be no reasonable expectation of privacy in the phone numbers you dial.

There was a Pen Register Act in 1986 that codified their use under Federal Law, but still no Fourth Amendment protection, no exclusion of evidence. As the Internet grew in popularity there was some question as to whether something analogous to pen registers would be allowed with the Internet. After all, the basic technology of reading electromagnetic pulses to track phone numbers dialed was quite a bit different than tracking someone’s web activity. Yet, in 2001, this question was put to rest when the Patriot Act expanded the definition of pen registers to include those that would work with Internet surveillance. That has been the accepted practice now for over ten years. [It is somewhat comical that instead of introducing a new law that allowed the government to snoop on websurfing, the government instead redefined a 19th century device consisting of an armature, electromagnet, and fountain pen, into something that can track websurfing.]

Thus, the public outcry, Snowden’s indignation over the practice, and protests over the alleged violation of our Constitution are somewhat misplaced, or at least a little late. Intelligence agencies have had the explicit ability to comb through your internet traffic without a warrant since the Patriot Act of 2001. They’ve known about the Spanking Coeds site you visit for years. Just like the police have had the explicit ability to put a pen register on your phone without a warrant since the 1970s, they can do the same with your Interweb activity. It doesn’t start in 2013 or with Snowden or PRISM. It all goes back to the Patriot Act, Smith in the ’70s, and a 19th century device used with telegraphs: the pen register.

]]>https://nerdsincourt.wordpress.com/2013/06/11/on-prism-smith-and-pen-registers/feed/1cevolaImageImageImageARGUMENTS BEGAN AND ENDED IN 38 STUDIOS MOTION TO DISMISS: NO “OPENING ARGUMENTS”https://nerdsincourt.wordpress.com/2013/05/23/arguments-began-and-ended-in-38-studios-motion-to-dismiss-no-opening-arguments/
https://nerdsincourt.wordpress.com/2013/05/23/arguments-began-and-ended-in-38-studios-motion-to-dismiss-no-opening-arguments/#commentsThu, 23 May 2013 11:42:15 +0000http://nerdsincourt.wordpress.com/?p=349Continue reading →]]>It is being widely reported that the Providence Journal reported that Opening Arguments began in the Rhode Island case against 38 Studios, the producer of Kingdoms of Amalur. Nerds in Court previously covered the story here though little progress has been made other than repeated attempts by the 14 Defendants, including former star pitcher Curt Schilling, to have the case dismissed.

In fact, the Providence Journal only reported that “Lawyers Begin Arguments.”

The phrase “Opening Arguments” is something of a mistake, found more in TV and movies than real life. Most jurisdictions have a process of trial where there are Opening Statements and Closing Arguments.

As lead trial attorney, once the jury has been sworn, before evidence is presented, you can make an Opening Statement. It is not really supposed to be argumentative in nature. It is something of a preview or overview. “You are going to hear from witness John Smith, who will tell you A, B, and C. You are going to see Document 1 that shows D and E.” Granted, it gives the attorney the chance to present the facts in the way they want and shape the narrative somewhat, but outright arguments during Opening Statements are going to be shut down by the judge. You can really only refer to evidence you have a good faith belief will be admissible and presented to the jury. Besides, it is not bueno to tell the jury they are going to hear from John Smith and then they don’t.

After all the evidence has been presented and both sides have closed their case, before jury deliberations, you can make a Closing Argument. NOW the attorney can talk about how the evidence presented ties into the law. “You’ll see in your jury instructions that the first element of this tort is X. Well, the testimony of John Smith on A, B, and C, clearly shows that this first element is met.” And so on. This is where you can make your arguments to the jury, tying facts in evidence to the applicable law.

So, Opening Statements and Closing Arguments. No Opening Arguments, since no evidence has been presented to the jury yet. Again, Opening Arguments is something you’ll hear in movies and TV, but not real life law stuff so much. [Some jurisdictions might allow some limited argumentation before presenting evidence, though it is rare, very brief, and probably not called Opening Arguments].

The problem is that even saying “Opening Arguments” implies, particularly to the layperson, that a trial has begun. A review of the Rhode Island Superior Court Calendar for the following day shows that Judge Michael A. Silverstein has 10 motion hearings set and no trial on calendar. In fact, next Monday, Judge Silverstein has a trial on calendar in an unrelated case. Furthermore, the Providence Journal would have most likely said, “Trial Begins” if trial was beginning. It appears actually that it was just another hearing on a Motion to Dismiss the case, which may or may not be successful.

]]>https://nerdsincourt.wordpress.com/2013/05/23/arguments-began-and-ended-in-38-studios-motion-to-dismiss-no-opening-arguments/feed/0cevola250px-Kingdoms_of_Amalur_Reckoning_coverGAMES WORKSHOP SPOTS AUTHOR’S USE OF THE TERM “SPACE MARINE” AND CLAIMS TRADEMARK INFRINGEMENThttps://nerdsincourt.wordpress.com/2013/02/12/games-workshop-spots-an-authors-use-of-the-term-space-marine-and-claims-trademark-infringement/
https://nerdsincourt.wordpress.com/2013/02/12/games-workshop-spots-an-authors-use-of-the-term-space-marine-and-claims-trademark-infringement/#commentsWed, 13 Feb 2013 01:15:20 +0000http://nerdsincourt.wordpress.com/?p=338Continue reading →]]>In mid-December 2012, Amazon.com removed the e-book “Spots the Space Marine: Defense of the Fiddler” by MCA Hogarth from their store upon Games Workshop’s request. Games Workshop claimed Hogarth’s book infringed their trademark of the term “space marine.” Hogarth denied infringement, asserting to Amazon that “space marine” is a generic term and a fundamental trope to science fiction as a genre.

The term “space marine” has been alive and well for over 80 years. Authors such as Bob Olsen, E.E. Smith, and the renowned Robert Heinlein used the expression in connection with various short stories, novellas, and novels. Olsen published “Captain Brink of the Space Marines” and “The Space Marines and the Slavers.” while Heinlein’s “Misfit” and “The Long Watch” both reference to the phrase.

More recently, space marines appear in and are integral to Games Workshop’s Warhammer 40,000 universe. These genetically enhanced super-soldiers serve the God Emperor of Mankind in a dystopian future and appear in table top games, video games, and literary works.

Though Games Workshop owns registered marks in the term “space marine” in connection with games, they have additionally claimed a “common law trademark claim” over the idiom in other media. Hogarth, and many science fiction authors and enthusiasts, feared that this claim could cause science fiction to lose one of its fundamental archetypes.

Hogarth contacted The Electronic Frontier Foundation (“EFF”) fearing that a legal battle with Games Workshop after private defense firms quoted prices outside of her budget. EFF intervened on Hogarth’s behalf, and Amazon has reinstated the e-book for sale. Games Workshop’s claim to the term in connection with books, EFF argues, is disproportionate and describes the company’s behavior as trademark “bullying.” EFF encourages Amazon to ensure their “trademark takedown policies include easy-to-use counter-notice procedures.”

]]>https://nerdsincourt.wordpress.com/2013/02/12/games-workshop-spots-an-authors-use-of-the-term-space-marine-and-claims-trademark-infringement/feed/0cevolaSPOTSSPACEMARINETIME TO KICK THAT NASTY HOBBIT: JUDGE ISSUES TEMPORARY RESTRAINING ORDER ON ‘AGE OF HOBBITS’ MOCKBUSTERhttps://nerdsincourt.wordpress.com/2012/12/13/time-to-kick-that-nasty-hobbit-judge-issues-temporary-restraining-order-on-age-of-hobbits-mockbuster/
https://nerdsincourt.wordpress.com/2012/12/13/time-to-kick-that-nasty-hobbit-judge-issues-temporary-restraining-order-on-age-of-hobbits-mockbuster/#commentsFri, 14 Dec 2012 02:06:45 +0000http://nerdsincourt.wordpress.com/?p=312Continue reading →]]>It was 1937 when Tolkien published “The Hobbit, or There and Back Again” to wide critical acclaim, from which time it has sold an estimated 35 million to 100 million copies.

It was 1993 when Disney brought a lawsuit against a company, Goodtimes Home Video Corp. in the Southern District federal court in New York. Goodtimes released an animated “Aladdin” movie around the same time Disney did and Disney brought suit against Goodtimes. Disney lost, and apparently Hollywood largely assumed from thereon out that there wasn’t much that could be done about knock-off movies. If a low-budget movie studio released a similar movie as a big-budget blockbuster, then that was just the way things were and the big studios had to live with it.

Fast forward to 10 years and thousands of miles away from that lawsuit….

An exciting archaeological discovery happened in 2003 on the exotic Indonesian island of Flores. Nine skeletons were found of humanoid creatures that were approximately three feet tall that appear to have lived within the last 100,000 years, perhaps as recently as 12,000 years ago. Thus, these ‘mini’ humans would have coexisted with modern human ancestors, who came to the island at least around 45,000 years ago. There were numerous stone tools found, appropriately sized to the yard-tall humanoids. Three feet tall people, wow, how cool! The new species were unveiled on October 28, 2004, and swiftly nicknamed “Hobbits” even to the extent that the proposed scientific name for a time was Homo Hobbitus. Yet, the species became officially named Homo Floresiensis.

An exciting business discovery happened in 2005 for the heads of Asylum Studios when Blockbuster ordered 100,000 copies of their low-budget, direct-to-DVD “H.G. Wells’ War of the Worlds,” which was released the same month as Steven Spielberg’s big budget adaption of “War of the Worlds” hit theaters. Both were modernized adaptations of the 19th century classic and had movie posters and promotional materials which were, well, not highly dissimilar in appearance. Let’s try some math: 100,000 copies x $12.99 = $1,299,000. $1,299,000 – anywhere from $200k-$1MM in budget = big profits for Asylum. Looks like there is good money in direct-to-video low budget versions of big-budget theatrical releases, or “mockbusters” as they came to be called. From that point on, Asylum has been a specialist in the “mockbuster” genre, bringing such gems as: Snakes on a Train, The Da Vinci Treasure, Halloween Night, Pirates of Treasure Island, Transmorphers (1 & 2), Death Racers, The Day the Earth Stopped, The Terminators, Paranormal Entity (1, 2, & 3), Almighty Thor, Battle of Los Angeles, and earlier this year: Abraham Lincoln vs. the Zombies. Asylum did not bring you: Snakes on a Plane, Da Vinci Code, Halloween, Pirates of the Caribbean, Transformers (1 & 2), Death Race, The Day the Earth Stood Still, The Terminator (any), Paranormal Activity (1, 2, & 3), Thor, Battle for Los Angeles, or Abraham Lincoln: Vampire Hunter. All of the Asylum releases are concurrent in time with the big budget releases.

Earlier this year, in April 2012, Asylum ran into legal trouble with Universal over “American Battleship” a mockbuster version of “Battleship.” Universal was reported to have spent $30MM promoting the $100MM “Battleship” movie, and filed suits on both sides of the Atlantic to enjoin Asylum. Universal met with some success, being one of the first post-Aladdin cases to try to do something about knock-off movies. Perhaps someone read the Disney v. Goodtimes opinion and realized that the precedential value of the opinion is solely to show what a badly handled, stupidly done case that was. “American Battleship” was renamed “American Warships.”

Also earlier this year, around August 2012, Asylum had announced plans to release “Age of the Hobbits” on December 11, 2012, just a few days before New Line’s “The Hobbit: An Unexpected Journey” was set to hit theatres. “Age of Hobbits” deals with our friends the Homo Florensiens that the archaeologists discovered in 2003, and their battle against komodo dragon worshipping cannibals, which archeologists might not have found at all. To be fair, the tagline for “Age of Hobbits” is, “They are not Tolkien’s Hobbits, they are real!” “Age of Hobbits” was filmed starring Christopher Judge of Stargate: SG-1 and Bai Ling the creepy-hot-eye-plucking-incest-sister from “The Crow” (the original movie).

Not dissuaded by the tagline, emboldened by the success of Universal, and donning protective lenses, MGM, New Line Cinema, Warner Bros., and others filed suit on November 7, 2012, in a federal court in Central California (Los Angeles) to prevent “Age of Hobbits” from being released under that title. On November 21, an ex parte application was filed for the Temporary Restraining Order, and the Honorable Philip S. Gutierrez issued his 32 page opinion granting the TRO on December 10, 2012.

NiC has seen it misreported that New Line and MGM “won the lawsuit,” and while winning the TRO is certainly a victory, it is not in a legal sense winning the entire lawsuit. There is still a hearing set for January 28, 2013, as to whether to make the TRO a preliminary injunction. Theoretically, plaintiffs could still lose that, even if it is unlikely they would. Even if the injunction is won, injunctions can be revisited based on circumstances and there is still discovery, trial, appeal, and so on. You don’t need to have gone to law school to ask yourself: does winning a “temporary” restraining order sound like a permanent victory?

Yet, in the meantime, “Age of Hobbits,” now being renamed “Clash of Empires” in some markets, and “Dawn of Mankind” in others, will not be released in December as “Age of Hobbits.”

]]>https://nerdsincourt.wordpress.com/2012/12/13/time-to-kick-that-nasty-hobbit-judge-issues-temporary-restraining-order-on-age-of-hobbits-mockbuster/feed/2cevolajudge_ageofhobbits_posterI ALONE GET SUED: LIGHTNING CRASHES ON EX-SINGER FOR BAND “LIVE” AS SUIT IS FILED FOR TRADEMARK INFRINGEMENT BY PROXY COMPANY OF FORMER BANDMATEShttps://nerdsincourt.wordpress.com/2012/07/31/i-alone-get-sued-lightning-crashes-on-ex-singer-for-band-live-as-suit-is-filed-for-trademark-infringement-by-proxy-company-of-former-bandmates/
https://nerdsincourt.wordpress.com/2012/07/31/i-alone-get-sued-lightning-crashes-on-ex-singer-for-band-live-as-suit-is-filed-for-trademark-infringement-by-proxy-company-of-former-bandmates/#commentsTue, 31 Jul 2012 21:27:30 +0000http://nerdsincourt.wordpress.com/?p=306Continue reading →]]>Vocalist/frontman Ed Kowalczyk started the band “Live” in 1991 with three other musicians. Friends in York, Pennsylvania, they had played under various combination until a 1991 contract with Radioactive Records saw them enter the studio under the new moniker. They also formed United Action Front Unlimited as a company to house the band’s new trademark name. “Live” went on to have some hit songs, including “I Alone” and “Lightning Crashes” which seemed to play every other on MTV, back when MTV actually played music videos at times other than 3-6 a.m. From the 8 million selling “Throwing Copper” the song “Lightning Crashes” was the #1 song for 10 weeks on the Billboard charts. “Live” has sold over 20 million albums worldwide, maintaining fans to this day in other countries, even if their star has waned somewhat in the USA. Kowalczyk, with his thin frame, shaved head, long-braid ponytail, cobra dance moves, and apparent shirt-allergy, was certainly the most identifiable member.

In 2009, Kowalczyk left the band to start his own solo career. As one might expect, promotions for his tours and solo albums have often made strong reference to the fact that Kowalczyk was the singer for Live. This has prompted suit from United Action, filed earlier this month in Manhattan federal court, for trademark infringement, trademark dilution, unjust enrichment, and other causes of action. The essentials of the suit is that Kowalczyk inappropriately used the former band’s name to promote himself, essentially misleading the public into thinking that he was still a part of Live, or that his performances are still somehow linked to Live. After he left, Kowalczyk was replaced by Chris Shinn and Live continues on.

This suit is likely to hinge on specific facts and representations. This reporter was actually in a Nevada casino a previous year that Kowalczyk was going to perform in as pat of his solo act, and saw first-hand his promo reel for the tour, which the casino looped repeatedly as they do. While the promo-reel certainly mentioned that Kowalczyk was formerly part of “Live” it did emphasize that he was a former singer for them starting his solo career on his own tour. It did not seem a reasonable person, or even a non-dunderhead, could mistake that Kowalczyk was no longer part of “Live” anymore, as it touted the visionary new direction for music his solo work would take the audience. Of course, NiC has not seen every bit of promotional material out there, and the devil is always in the details in lawsuits.

If the only thing that can be established is that Kowalczyk mentioned that he was the former singer of “Live” and nothing else, this is not a promising case for Plaintiff United Action. As a true statement of fact, Kowalczyk should be free to mention that he was, in fact, the former singer for “Live” if it is not done in a misleading manner. For example, in 1998 Playboy Enterprises sued 1981 Playmate of the Year Terri Welles for touting on her personal website that she was a former Playmate of the Year. Playboy sued, since her site was unaffiliated with them; however, the Court found it did not violate Playboy’s trademark, since Welles was merely stating a true fact and not misleading the public into thinking that Playboy had sponsored her site. Thus, a former bandmate should be free to mention what band he used to be in to promote his solo act, as long as he doesn’t mislead. NiC will be interested to see how this lawsuit plays out.

]]>https://nerdsincourt.wordpress.com/2012/07/31/i-alone-get-sued-lightning-crashes-on-ex-singer-for-band-live-as-suit-is-filed-for-trademark-infringement-by-proxy-company-of-former-bandmates/feed/0cevolamqdefaultUS v. KIM DOTCOM – PART I OF THE MEGAUPLOAD SAGA: THE CURIOUS CASE OF KIM DOTCOMhttps://nerdsincourt.wordpress.com/2012/07/30/us-v-kim-dotcom-part-i-the-curious-case-of-kim-dotcom/
https://nerdsincourt.wordpress.com/2012/07/30/us-v-kim-dotcom-part-i-the-curious-case-of-kim-dotcom/#commentsMon, 30 Jul 2012 17:32:18 +0000http://nerdsincourt.wordpress.com/?p=299Continue reading →]]>Kim Dotcom has led an interesting life. Born Kim Schmitz in Kiel, Germany, in 1974, the 6’6″, ~300 lbs., father of 5 (including twin girls born earlier this year) has been in the public spotlight, and had brushes with the law, since he was a teenager. At 19, he was known as Kimble (referencing the main character of The Fugitive), a Munich-based hacker who had cracked United States corporate PBX codes (PBX is Private Branch eXchange, a term for a phone system serving a particular office). In the days before Skype, this let people who purchased the codes from him to make ‘free’ long-distance phone calls by charging them to the business. On March 16, 1994, in what appeared to be a sting set up by MCI, 20 police raided his home, seized $80,000 in computer equipment and took him to jail. He was convicted in 1998, and sentenced to two tears of juvenile detention.

In the meantime, ‘Dotcom also used his expertise to try to get into computer security consulting, and in 1994 founded a company called DataProtect. In 1999, DataProtect introduced a special Mercedes-Benz with a built-in 17″+ flat screen monitor, Windows, and mobile broadband wireless. Yes, mobile broadband wireless in a Mercedes in 1999. In 2000, Dotcom sold 80% of his shares to German company that when bankrupt the following year in the (regular) dotcom-bubble crash. Dotcom and his modified Mercedes have been a frequent participant in the international road rally event the Gumball 3000, winning it in 2001, and finishing in 2004. Yes, he’s also won an international road rally.

In 2001, Dotcom did a couple things that would result in a 2002 and 2003 conviction, including Germany’s largest insider trading case at the time, and embezzlement. The embezzlement charge was due to a ‘loan’ that Dotcom arranged between two companies that he owned, which ended up with money in his pocket and both companies going bankrupt. Dotcom maintained he was innocently ‘dazzled’ and thought he could repay the loan. The insider trading was part of a pump-and-dump scheme. Here’s how ‘pump-and-dump’ works. First, you buy shares of a stock, generally a troubled ‘penny stock’ which trades cheap, so you can buy a lot shares. In this case, it was 375,000 Euro worth of LetsBuyIt.com, a nigh-bankrupt company. Second, you ‘pump’ the stock, by making knowingly false claims to the public about good prospects for the company’s future. Here, Dotcom announced he would be investing 50 million Euro that he didn’t have into LetsBuyIt.com. Then, when the stock is inflated thanks to your misrepresentations, you ‘dump’ the stock by selling it off and pocketing the profit. Here, when Dotcom sold off his shares a few days later, the 375,000 had become over 1.5 million Euro. He was arrested in Bangkok in 2002 and deported back to Germany.

Jump to March 2005, the year Schmitz legally changed his surname to Dotcom. It is at this time Dotcom claims that he reformed his criminal ways and set out to start a new life on the right path. He forms the company Megaupload Limited as a Hong Kong based business. There will be a lot more on Megaupload in subsequent parts of this story, but it should be noted that the company grew so large as to become 4% of all internet traffic at its peak, with 50 million users a day. That is correct, 4% of ALL internet traffic was on Megaupload, the 13th most popular site on the internet.

With his company reaching revenues of $175 million annually, in 2010, Dotcom and his family moved to New Zealand where he was granted permanent residency. He leased the largest private residence in all of New Zealand, a $30 million dollar mansion in Coatesville. He began making large charitable donations in 2011, including earthquake disaster relief, and funding public fireworks shows. Yet, New Zealand has a good character test to be able to purchase land, and Dotcom was denied the power to purchase the mansion when the lease expired, though he remained living there, presumably on a new lease.

In November 2011, the videogame Call of Duty: Modern Warfare 3 released. In the first 24 hours, there was 7 million hours of gameplay logged and $400 million spent, making it the largest entertainment release, well, ever. By contrast, Avengers shattered box office records by making $200 million in its opening weekend. From his mansion in New Zealand, Dotcom used the name MEGARACER to become the #1 player on the leaderboards. Yes, Dotcom was the best player in the biggest all-time videogame. This video shows his path to #1:

Dotcom maintained the number one spot in MW3 until his arrest in January of this year for US criminal copyright infringement related to Megaupload, which will be the subject of subsequent parts to this important, and interesting, story. Next, we trace the shape of the Modern Warfare between entertainment and internet companies worldwide.